REVISED, July 16, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-30323

_______________

VIRGIE LEE VALLEY, et al.,

Plaintiffs,

UNITED STATES OF AMERICA,

IntervenorPlaintiff-Appellee,

VERSUS

RAPIDES PARISH SCHOOL BOARD,

Defendant-Appellee,

RICHARD P. IEYOUB,

Attorney General of the State of Louisiana,

Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

_________________________

June 26, 1998

Before WISDOM, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The Attorney General of Louisiana appeals a judgment striking1 The district court recently extended its order through the 2005-06 school

year.

2 a state constitutional amendment and invalidating implementing

legislation designed to divide the Rapides Parish School District

into two districts. Finding this case not ripe for review, we

vacate and remand.

I.

A.

The Rapides Parish School Board (“RPSB”) operated a

constitutionally impermissible dual school system SS one for whites

and one for non-white s SS at the time of B rown v. Board of Educ.

,

347 U.S. 483 (1954) ( Brown I ). In light of B rown and its

progeny SS

which dire cted that schools be desegregated “with all

deliberate speed,” Brown v. Board of Educ.

, 349 U.S. 294, 301

(1955) ( Brown II ) SS black children in 1965 filed suit a gainst the

RPSB, seeking desegregation.

In the intervening thirty-three years, the district court has

imposed successive plans to achieve integration. None apparently

has achieved unitary status or has brought the district court to

the point of relinquishing its remedial powers over the RPSB. 1

At first, the district court settled upon a “free choice” plan

that remove d the barriers for blacks to go to white schools and

vice versa

, but stopped short of forced integration. When the3

Supreme Court struck down a similar program in Green v. County

Sch. Bd.

, 391 U.S. 430 (1968), this court directed the district

court to be more aggressive in achieving int egration, using the

Green factors. That was in 1969. S ee generally Valley v. Rapides

Parish Sch. Bd. (“ Valley I ”), 646 F.2d 925, 929-30 (describing the

history of the litigation), modified

, 653 F.2d 941 (5th Cir. Unit A

May 1981).

Since that time, the district cou rt has given careful

attention to the racial ratios of the students, faculty, and

administrators in each school. The program continues to this day

and involves extensive busin g and other means to achieve racial

parity. The district court remains active in redrawing the lines

of attendance at schools SS at regular intervals SS in order to maintain

racial balance and in managing other aspects of running the RPSB.

At issue in this case are Wards 9, 10, and 11 of Rapides

Parish (the “northern wards”), all north of the Red River. These

wards are primarily white, while the remaining wards SS located in

the city of Alexandria, south o f the river SS are more racially

mixed. The northern wards are SS and have been SS part of the RPSB.

Throughout the litigation, the district court has made a

continuing effort to maintain racial balance in the city schools of

Alexandria. Accordingly, the court has ordered the RPSB to bus

white students from these suburbs to the city and t o do the

opposite with non-white students from the city. The district court4

has been hindered in its quest for racial balance, however, by

increases in white flight and in black enrollment.

In 1995, the state legisl ature approved a ballot measure to

change the state constitution to form a separate school district in

the northern wards and to allow it to elect its own school board.

The measure was approved by state voters and proclaimed part of the

state constitution by the governor in November 1995. S ee L A

. C ONST

.

art. VIII, § 13(D), and advisory notes.

Contemporaneously, the legislature passed enabling

legislation SS

Act 973 SS to provide, among other things, for the

drawing of election districts for the members of the new district’s

board. S ee L A

. R EV

. S TAT

. A NN

. § 17:62. Assuming the Justice

D epartment’s approval of the voting districts under the Voting

Rights Act, the election for the initial board members is to take

place with the congressional elections in November 1998. See id.

§ 17:62(C).

B.

The RPSB file d the instant declaratory judgment action S S as

part of its ongoing schoo l desegregation litigation SS in October

1996, praying for a declaration that Act 973 is unconstitutional as

applied to the RPSB because it interferes with the RPSB's ability

to conform to the desegregation order. S ee Valley v. Rapides

Parish Sch. Bd.

, 960 F. Supp. 96, 97 (W.D. La. 1997). At the2 The district court did not hold an evidentiary hearing before it entered

its order.

3 The students residing in the remaining RPSB would be 60% black and 40%

white, while those residing in the new district would be 87% white and 13% black.

5 district court’s request, the RPSB served notice on the state

attorney general, who is the officer statutorily obliged to defend

the state’s laws.

The attorney general filed a response opposing the declaratory

judgment but did not have the opportunity to introduce evidence in

support of the law. 2 Instead, he argued that a declaratory

judgment was improper because the claim is not ripe for review.

Even if it were ripe, he reasoned, the law does not unconstitutionally infringe on the district court’s remedial authority.

The district court found that there was a ripe case or

controversy needed to sustain a declaratory judgment action,

because the school district faced su b stantial uncertainty and

e xpense if subjected to the possibility of adhering to two

conflicting obligations SS one imposed by the state constitution and

the other by the federal court. S ee id. at 98. Reaching the

merits, the court relied on the fact that without the northern

wards, there would be fewer white children in the remaining school

district. The resulting RPSB would become slightly more black than

white, while the new district would be overwhelmingly white. 3 The

court held that because of this change in racial balance, Act 973

impermissibly infringes on its remedial powers and thus offends the4 Not participating in the appeal are the original minority plaintiffs SS the

parties ostensibly sued by the school district in its declaratory judgment

action. The real adverse parties appear to be the proposed new school district

and the state.

5 See Powder River Ba sin Resource Council v. Babbitt , 54 F.3d 1477, 1483 (10th

Cir. 1995); Felmeister v. Office of Attorney Ethics

, 856 F.2d 529, 535 n.8 (3d Cir.

1988). A decision to stay a declaratory judgment proceeding when there is a

parallel state court proceeding is reviewed for abuse of discretion. S ee Wilton v.

Seven Falls Co.

, 515 U.S. 277, 282-83 (1995). We decline to adopt the appellants'

suggestion that Wilton addresses the district court’s finding of Article III

subject-matter jurisdiction under the ripeness doctrine.

6 federal Constitution. See id. at 100-01.

The state appeals this adverse judgment. The RPSB, and the

United States as plaintiff-intervenor, argue for affirmance. 4

II.

A.

Ripeness concerns subject matter jurisdiction, so we consider

it d e novo

. 5 Subject-matter jurisdiction can be raised at any

time, even sua sponte

. S ee, e.g.

, Marathon Oil Co. v . Ruhrg a s,

1998 U.S. App. LEX IS 13358, at *12 (5th Cir. June 22, 1998)

(en banc).

B.

With any declaratory judgment action, there is a concern that

the legal issues will not be sufficiently developed for the court

to make a decision on the merits. Instead, the court may face a

set of facts so contingent on other events that a decision would

constitute no more than an advisory opinion on an abstract legal6 Jobs, Training & Servs., Inc. v. East Tex. Council of Gov’ts

, 50 F.3d 1318,

1325 (5th Cir. 1995); see, e.g.

, Abbott Lab. v. Gardner

, 387 U.S. 136, 149 (1967).

7 dispute. Accordingly, before addressing the merits of the case,

courts must be vigilant, in declaratory judgment sui ts, to make

certain the action is ripe for review.

1.

“Ripeness is a function of an issue’s fitness for judicial

resolution as well as the hardship imposed on the parties by

delaying court consideration.” 6 Thus, in considering a declaratory

judgment action’s ripeness for review, we address both a

constitutional requirement and prudential concerns. The Supreme

Court most recently has reminded us of the importance of these

considerations. S ee Texas v. United States

, 118 S. Ct. 1256, 1259-

60 (1998); accord National Treasury Employees Union v. United

States , 101 F.3d 1423, 1427 (D.C. Cir. 1996) (“ NTEU ”)

.

a.

A feder al court must find that Article III standing

requirements are met. These include (1) “injury in fact S S an

invasion of a legally protected interest which is (a) concrete and

particularized and (b) actual or imminent, not conjectural or

hypothetical”; (2) causat ion, meaning that the injury is “fairly

traceable to the challenged action of the defendant”; and (3)7 See also Ohio Forestry Ass'n, Inc. v. Sierra Club

, 118 S. Ct. 1665, 1670

(1998) (“[T]he ripeness requirement is designed 'to prevent the courts, through

avoidance of premature adjudication, from entangling themselve s in abstract

disagreements . . . .'”) (quoting Abbott Lab. , 387 U.S. at 148-49).

8 redressability, meaning that “it must be likely, as opposed to

merely speculative, that the injury will be redre ssed by a

favorable decision.” L ujan v. Defenders of Wildlife

, 504 U.S. 555,

560-61 (1992) (citations and internal quotation marks omitted); see

NTEU , 101 F.3d at 1427. The standing component that deals

directly with ripeness is the requirement of “imminence.” In a

declaratory action, the threatene d injury must be “sufficiently

'imminent' to establish standing.” NTEU , 101 F.3d at 1428.

b.

Once the con stitutional showing has been made, a court must

sa tisfy prudential concerns by balancing the need to expend its

resources on a case it may never need to decide against the expense

and hardship to the parties of having a delayed adjudication. The

court must make sure that a sufficient factual basis, and necessity

on the part of the parties, exist to justify the expenditure of

judicial resources. “Prudentially, the ripeness doctrine exists to

preve nt the courts from wasting our resources by prematurely

entangling ourselves in abstract disagreements

. . . . ” Id. at

1431. 7 These prudential concerns ensure that changing hypothetical

circumstances or lack of party interest does not make resolution of9

the legal issues unnecessary. “Article III courts should not make

decisions unless they have to.” Id.

2.

a.

This case is not ripe for adjudication, because it fails to

satisfy the Article III “case or controversy” requirement. Under

the Article III analysis, there is no imminent threat of harm to

the RPSB or to the desegreg ation decrees. As the district court

found, there is a potential threat of harm . RPSB c ould be

subjected to conflicting obligations of the federal court and the

state constitution. The harm’s p robability of occurrence

, however,

is sufficiently remote SS given the myriad of contingencies necessary

for it to develop SS that it fa ils to constitute the i mmediate harm

necessary for Article III justiciability.

In order for the RPSB to face an imminent risk of violation of

the desegregation order, too many contingencies would have to

occur. There would have to be a new district in the northern wards

with a proposed plan that would unconstitutionally interfere with

the court’s remedial authority. For that to occur, there would

have to be a proposed plan about how the new district would operate

in relation to the RPSB. For that to occur, there would have to be

an election of a new board. And for that to occur, there would

have to be Justice Department preclearance of t he new voting8 S ee Texas v. United States

, 118 S. Ct. at 1259 (“A claim is not ripe for

adjudication if it rests upon “'contingent future events that may not occur as

anticipated, or indeed may not occur at all.'”) (quoting Thomas v. Union Carbide

Agric. Prods. Co.

, 473 U.S. 568, 581 (1985)). The existence of a law is not, by

itself, necessarily sufficient to establish imminent injury. S ee, e.g.

, United

Pub. Workers v. Mitchell

, 330 U.S. 75, 90 (1947) (“A hypothetical threat is not

enough.”); id . at 91 (“No threat of interference by the Commission with rights

of these appellants appears beyond that implied in the existence of the law and

the regulations.”) (citation omitted).

9 The Supreme Court addressed the constitutionality of “splinter school

districts” in United States v. Scotland Neck City Bd. of Educ.

, 407 U.S. 484, 490

(1972), and Wright v. Council of the City of Empor ia , 407 U.S. 451, 464-66

(1972), and this circuit thoroughly considered the issues in R oss v. Houston

(continued...)

10 districts. Because any one of these numerous links may not come to

be, the string of contingencies is too tenuous to support

ripeness. 8

b.

Even if t hese contingencies were to constitute an imminent

injury, prudential concerns strongly dictate against the district

court’s conclusion that this case is ripe for adjudication, for

there is a substantial possibility that the actions of the new

board will not violate the court’s orders. For example, the new

board could adopt an inter-district busing and teacher reassignment

plan with the RPSB to comply with the remedial order. Such a plan

likely would moot the controversy.

Essentially, the threa t of noncompliance with the court's

orders will not occur unless the new board seeks to become

operational under Act 973 and then decides to take actions that,

under the existing caselaw, 9 would unconstitutionally interfere9 (...continued)

Indep. Sch. Dist. , 559 F.2d 937, 943-44 (5th Cir. 1977) (per curiam).

11 with the orders. Although the RPSB need not wait until an actual

disruption occurs in order to seek declaratory and injunctive

relief, it should wait at least until there is a concrete threat.

Here, that would mean that it must defer at least until the new

board is in place and develops a plan f or how it proposes to run

the new district.

Also important is the need to conserve judicial resources. As

we have said, this dispute may end up being entirely academic, as

no one can know what a not-yet-elected board will do. The RPSB and

the United States have imputed to this yet-to-exist body its worstcase parade of horribles. Both have assumed that the new district

will do everything it can to thwart the district court’s remediation of the past d e jure segregated school system. From the

record, there is no basis for that fear . The ripeness balance

therefore weighs in favor of waiting to address this controversy.

Our ripeness holding is underscored by our holding in Ross v.

Houston Indep. Sch. Dist.

, 577 F.2d 937, 944-45 (5th Cir. 1977)

(per curiam). There, we made plain the proof needed by the

proponent of the splinter district:

WISD [the new school district] must, at the outset,

establish wh at its operations will be. It cannot meet

this requirement by simply reasserting the admission

previously filed; rather, WISD must express its precise

policy positions on each significant facet of school

district operation. For example, it should state how it10 In most civil litigation, the burden of proof is on the party seeking

to invoke the court’s remedial authority. Therefore, the failure to introduce

evidence necessary to meet the legal standard would be grounds to dismiss for

failure to state a claim. School desegregation cases, however, are an exception.

The party seeking to escape from the court’s remedial authority bears the burden

of proving that its actions are not intended to re-establish de jure segregation.

See Freeman v. Pitts , 503 U.S. 467, 494 (1992).

12 plans to work with HISD regarding interdistrict pupil

assignments, including transportation; curriculum

composition and control; teacher employment, discharge,

assignment and transfer; financing and taxation; school

building construction, utilization and closing

procedures; special district-wide efforts such as the

magnet school program; administration; and any other

areas of public school ope rations or support which the

district court ma y specify as pertinent to the

accomplishment of its underlying desegregation order.

Even after this definitive statement has been made, the

burden r e mains on WISD to establish that its

implementation and operation will meet the tests outlined

for permitting newly created districts to come into being

for parts of districts already under an ongoing court

desegregation order.

Id. (citat ion omitted). Given the facts of the instant case, as

now d eveloped, the state SS and more importantly, the new

board SS should have an opportunity to offer such proof.

Finally, there are fairness concerns. The state S S which has

the burden of proving its own law’s constitutionality 10 SS has had no

reasonable opportunity to m eet its burden, as most of the

information it would have to present for this purpose simply does

not exist.

The real adverse pa rty in interest is the yet-to-be-formed

school board. Its actions S S or inactions SS are fundamental to a

determination whether the RPSB has an injury of which to complain.

We should not a llow the forfeiture of its possible interests11 From Ross

, the district court should realize that consideration of all

the factors of the Wright test is necessary to inform the use o f its remedial

discretion when deciding whether to invalidate the instant state constitutional

amendment and its implementing legislatio n. S ee Ross

, 559 F.2d at 944 (“The

right of WISD to implement and operate a new and separate school district partly

within the geographic confines of HISD has never been t ested by the criteria

established in these precedents. We remand the case so that the district court

can make the required assay.”).

13 without the presentation of a defense.

III.

If and when this case becomes ripe for review SS and if and when

the parties thereafter decide to reassert a request for relief SS the

district court should apply the legal test outlined in Wright v.

Coun cil of the City of Emporia , 407 U.S. 451, 464-66 (1972), and

elucidated in Ross

. Necessarily, the district court would have to

hold an evidentiary hearing or otherwise provide an avenue for the

parties to introduce evidence. 11

The judgment is VACATED, and this mat ter is REMANDED for

further proceedings in accordance with this opinion.

ENDRECORD14

WISDOM, Senior Circuit Judge, dissenting:

I respectfully dissent.

This case is so bursting with over-ripeness that it emits an

unpleasant odor.

Should this case be sent back to the district court, the

district judge wi ll find again the controlling fact already well

known to the district judge, a life-long Alexandrian and a federal

district judge since his appointment in October 1970. The

controlling fact, well known to Louisiana and to this Court, is

that the area covered by the ninth, tenth, and eleventh wards of

the eleven wards in Rapides Parish is clearly defined as the

predo minantly white section of Alexandria. It is admittedly

eighty-seven per cent white, and may be more. The proposed

majority opinion is, therefore, a blatant attempt to establish a

special public school district for whites in a limited area known

as the white section of Alexandria.

The notion expr essed in the first sentence of the proposed

majority opinion that the enabling legislation was “designed to

divide the Rapides Parish School District into two districts”, is

indeed an admission of the fact that the plan is an attempt to

establi sh d e jure segregation in Alexandria public schools

-- at

least for the time it will take to overcome stall ing and for the

case to be decided en banc or for it to reach the United States

Supreme Court.12 347 U.S. 483 (1954).

13 349 U.S. 294 (1955).

14 347 U.S. 497 (1954).

15 The majority is willing to accept W right v. City of

Emporia , 407 U.S. 451 (1972). Fine. The true “test” from Wright

and the similar case of United States v. Scotland Neck City B. Of

Educ. ,407 U.S. 484, 490 (1972), is “whether [the splinter district

plan] hinde rs or furthers the process of desegregation. If the

proposal would impede the dismantling of a dual system, then a

district court, in the e xercise of its remedial discretion, may

enjoin it from being carried out”. R oss v. Houston Ind. School Dist.

, 559 F.2d 937, 943 (5th Cir. 1977).

Wright

, like the Rapides case, involved a schoo l district

under court order to dismantle a dual educational system. 407 U.S.

at 455-9. The W right court’s chief concern with the creation of a

splinter school d istrict was that the division would impede the

efforts to dismantle the dual system. The court held that “a new

school district may not be created where its effect would be to

impede the process of dismantling the dual system.” I d

. at 470.

This point is important. The obvious effect of the plan to divide

the R apides Parish School District is the creation of a

predominately white school district north of the Red River and a

predominately black school district south of the Red River. There

is no justification for considering the current plan two or three

years down the road, thanks to the appellate process. The court

must now consider the racial makeup of the new district.

15 The enabling legislation is directly contrary to Brown

, 12 Brown

II

, 13 and to Bolling v. Sharpe

, 14 and to the spirit of numerous

decisions of this Court.

The time to stop it is now. 15

It is incredible that half a century after Brown , one should

have to ask for an en banc judgment to prevent the establishment of

a school for whites in a public school system. That is necessary

in this case where ripeness “is a cape for unauthorized appellate16 M arathon Oil Corp. V. Ruhrgas

, No. 96-20361 (5th Cir. 1998)

(en banc) (Higginbotham, J., dissenting).

16 rule making”. 16 Here, however, the cape has rubbed hard against the

rock of controlling fact. The cape is in tatters.

The majority’s opinion, not the first sub mitted on the

immediate issue, impels an en banc proceeding.